Van Boven v Police [2022] NZHC 3347 (12 December 2022)

Last Updated: 15 June 2023

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-173 [2022] NZHC 3347

BETWEEN	LEWIS JOHNATHON VAN BOVEN Appellant
AND	NEW ZEALAND POLICE First Respondent DEPARTMENT OF CORRECTIONS Second Respondent

Hearing:	7 December 2022
Counsel:	K E Bucher for appellant G E R Alloway for respondent
Judgment:	12 December 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 12 December 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

VAN BOVEN v NEW ZEALAND POLICE [2022] NZHC 3347 [12 December 2022]

[1] Lewis van Boven was sentenced¹ in the Christchurch District Court to

26.5 months’ imprisonment on two charges of receiving,² a charge of driving whilst disqualified,³ a charge of possessing a methamphetamine pipe,⁴ a charge of theft,⁵ and a charge of breaching release conditions.⁶ Mr van Boven appeals his sentence. He contends he should have received credit for matters raised in a cultural report provided pursuant to s 27 of the Sentencing Act 2002.

Facts

[2] On 9 February 2022, Mr van Boven was sentenced to one year and four months’ imprisonment for a catalogue of offences before being released on conditions. He failed to report on three separate occasions during April 2022.

[3] On 14 May 2022, the owner of a Kawasaki motorcycle listed this vehicle for sale online. He was subsequently contacted and a sale was organised. Mr van Boven arrived at the vendor’s address and showed him what was a doctored image of $4,500 being transferred into his bank account. Mr van Boven left the address with the motor cycle. The vendor never received the money for the motor cycle.

[4] On 26 May 2022, the owner of an Audi vehicle that had been listed online for sale was contacted and a viewing arranged. After the viewing, the vendor was contacted by the same Facebook account. He accepted an offer of $11,000 for the vehicle. The vendor was then sent an edited image of a successful transaction of

$11,000 going into his account. The next morning, Mr van Boven arrived at the address and uplifted the vehicle. The vendor, however, never received any money.

[5] On 1 August 2012, Mr van Boven was disqualified from driving indefinitely. On 29 May 2022, Mr van Boven pumped $85.48 worth of petrol into the Audi vehicle

¹ Police v Van Boven [2022] NZDC 21456.

² Crimes Act 1961, ss 246 and 247(a); maximum penalty seven years’ imprisonment.

³ Land Transport Act 1998, s 32(1)(a) and (3); maximum penalty two years’ imprisonment.

⁴ Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year’s imprisonment.

⁵ Crimes Act, ss 219 and 223(d); maximum penalty three months’ imprisonment.

⁶ Sentencing Act 2002, s 96(1); maximum penalty one year’s imprisonment.

and drove off without attempting to pay. On 20 June 2022, Mr van Boven was arrested on Riccarton Road. A cannabis pipe was located in his backpack.

[6] When spoken to by Police, Mr van Boven admitted knowing the vehicles had not been paid for and that the screenshots tendered to the vendors were fake. He stated he did not pay for the petrol as he had no money. He admitted owning the pipe due to being an addict.

District Court decision

[7] Judge Couch took the receiving charges as the lead offending due to the relatively sophisticated method of deception involved in acquiring the vehicles, the high degree of pre-meditation and the value of the vehicles obtained – some $15,500. The only mitigating factor was that the vehicles were recovered. The Judge took a starting point of 20 months’ imprisonment and uplifted that starting point by 10 months for Mr van Boven’s tenth driving while disqualified conviction. It was observed he had been sentenced for similar offending as recently as February 2022. A two month uplift was adopted for the other charges. The Judge considered the resulting 33 month starting point was excessive and reduced it to 28 months in accordance with the totality principle.

[8] A 10 per cent uplift was imposed for Mr van Boven’s extensive criminal history that included many dishonesty offences. He received a 15 per cent credit for his guilty pleas. The Judge accepted Mr van Boven had experienced a seriously disturbing early life that involved violence, deprivation and family disintegration. However, the Judge observed that he had managed to live a largely offence-free life for some 10 years in his late twenties and early thirties before re-offending again after acquiring a drug habit. The Judge did not consider there was a sufficient causative connection between Mr van Boven’s past and his current offending, which the Judge described as involving relatively sophisticated fraud. An end sentence of 26.5 months’ imprisonment resulted.

Principles on appeal

[9] An appeal against sentence may only be allowed by an appellate court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁷ It will be appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” or cannot be justified on a correct application of the relevant sentencing principles.⁸

The appeal

[10] Mr Bucher, on behalf of Mr van Boven, did not challenge the starting point, nor the uplifts or discounts applied in sentencing Mr van Boven. The sole ground of appeal was that the Judge had erred by refusing to give Mr van Boven any credit for the matters canvassed in a report prepared under s 27 of the Sentencing Act. Counsel referred to Zhang v R, where the Court of Appeal determined that credit may be afforded to an offender to recognise the way in which an individual’s social, cultural or economic deprivation may have a causative link with their offending that may mitigate an offender’s moral culpability or explain the offending.⁹ Mr Bucher also referred to Carr v R where the Court of Appeal observed that where a s 27 report contains a credible account of social and cultural dislocation, poverty, alcohol and drug abuse or where unemployment, educational under-achievement, and violence are features of an offender’s upbringing, such matters should be taken into account at sentencing.¹⁰

[11] Mr Bucher submitted Mr van Boven’s upbringing featured an absent father, an unstable home life, exposure to serious and normalised violence which he himself was subjected to, sexual abuse, homelessness and other traumatic experiences, together with habitual consumption of alcohol and methamphetamine. Mr Bucher submitted Mr van Boven had offended in order to fund his drug use and he argued credit was justified because there was a sufficient nexus between matters canvassed in the report and Mr van Boven’s offending and because his background mitigated his moral

⁷ Criminal Procedure Act 2011, s 250(2) and (3).

⁸ Ripia v R [2011] NZCA 101 at [15].

⁹ Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

¹⁰ Carr v R [2020] NZCA 357 at [60].

culpability. Mr Bucher maintained credit in the order of 15-20 per cent should have been provided.

[12] On behalf of the Crown, Mr Alloway submitted it was within the sentencing Judge’s discretion to decline to give any discount for mattes canvassed in the cultural report because the nexus between the offending and Mr van Boven’s background was not sufficiently clear. Mr Alloway argued that assessing whether there is a sufficient link between an offender’s background and their offending is not a mechanical exercise, and that an overall assessment is required. He accepted Mr van Boven had experienced a demonstrably unfortunate upbringing consisting of violence, deprivation and family disintegration, but pointed to the extended period of stability in his life. Like the Judge, Mr Alloway characterised Mr van Boven’s dishonesty offending as sophisticated and that, because he had not committed any dishonesty offences between 2006 and 2020, it was suggested Mr van Boven had demonstrated an ability to lead a constructive and lawful life, notwithstanding his early disadvantages.

Analysis

[13] No issue arises with the starting point adopted by the Judge for the offending or the uplift for Mr van Boven’s criminal history and the credit granted for his guilty plea. The sole question that arises on the appeal is whether the Judge erred by refusing to extend credit for the matters raised in the s 27 report.

[14] It has always been the case that general hardship and deprivation in an offender’s upbringing can act as a mitigating factor at sentencing. Such matters bear upon considerations relating to the offender’s personal situation, and their family, whānau, community and cultural background which a court must take into account when sentencing an offender.¹¹ However, there needs to be a sufficient causal connection between an offender’s background and the particular offending for which they are for sentence to warrant credit. That will be an evaluative decision for the sentencing judge.¹² Potentially these background factors may demonstrate pervasive

¹¹ Sentencing Act 2002, s 8(i).

¹² Pomale v R [2022] NZCA 343 at [25].

and persistent social disadvantages that have impaired an offender’s pathway in life and bear on their culpability.¹³ They may also provide a direct explanation for behaviour that mitigates the offender’s conduct.¹⁴ However, whether there is the necessary link with a person’s offending will require an overall assessment of how those personal circumstances may have contributed to their offending.¹⁵

[15] I do not intend to traverse the details of the information set out in the s 27 report. It is sufficient to note Mr van Boven experienced a traumatic and harrowing upbringing, marked by family violence and domestic instability. He was exposed to sexual abuse while at school and as a teenager was living on the streets and abusing alcohol. As an older teenager and young man, he was frequently sentenced to terms of imprisonment. The gap in his offending between 2009 and 2018, marred only by some driving and non-compliance offending, appears to have coincided with a period of stability when Mr van Boven took full custody of his son and he became focused on being a parent. It appears that some five years ago his mother passed away and in 2019 he was the victim of a stabbing which caused him to come close to death. He reported that he became very paranoid and was dependent on a benefit. His mental health declined, he having previously spent time in Hillmorton Hospital at the age of

21. Mr van Boven says he “fell off the wagon” at this time and that his “old issues began to haunt him”, which resulted in him resorting to the use of methamphetamine and the accumulation of a drug bill. He puts his renewed offending down to the need to finance his drug habit.

[16] Mr van Boven described being devastated by his return to prison, having lost everything over the course of two years, despite his long period of having abstained from drink and drugs while raising his son. He maintains he is now drug free and is determined to stay off methamphetamine. He has a partner who has also dealt with a methamphetamine addiction and they are both attending counselling together at He Waka Tapu. Mr van Boven says he has isolated himself from the friends he picked up through methamphetamine and is determined to return to his old life and support his son.

13. Zhang v R, above n 9; and see also Simon France (ed) Adams on Criminal Law (online ed, Thompson Reuters) at [SA27.02].

¹⁴ R v Taulapapa [2018] NZCA 414; and see Adams on Criminal Law, above n 13, at [SA27.02].

¹⁵ Waikato-Tuhenga v R [2021] NZCA 503 at [51].

[17] As was acknowledged by the sentencing Judge, there can be no issue that Mr van Boven experienced a disadvantaged early life involving violence, deprivation and family disintegration. The reason the Judge declined to extend credit was primarily because Mr van Boven had managed to lead a stable life and remain offence-free for nearly 10 years. As a result the Judge felt he could not accept the deprivation Mr van Boven suffered as a young person was connected to the “pre- meditated, relatively sophisticated fraud” nor the driving while disqualified offence. The fact Mr van Boven, who is now 41 years old, was able to live offence-free for a relatively long period of time was, in the Judge’s view, significant.

[18] I do not consider the matters detailed in the s 27 report are too far in the past not to still be relevant considerations. As commented by the Court of Appeal in Carr v R, recognition of a causal linkage does not require the Court to be satisfied that matters are the proximate cause of the offending.¹⁶ I do not consider the deprivation and trauma Mr van Boven suffered in his early life can be decisively severed from the difficulties he experienced in the wake of his mother’s death and the violence he experienced from being stabbed in 2019. He described his “old issues” returning to haunt him and his existing fragilities were reflected in a decline in his mental health. He is said to have resorted as a result to methamphetamine. The pre-sentence report writer accepted that illicit substances had become part of Mr van Boven’s life for the past several years.

[19] It is therefore difficult to find Mr van Boven’s resort to illicit drug-taking has no connection with the distress he suffered as a result of his traumatic experiences as a young person. Once addicted to methamphetamine, Mr van Boven appears to have become an habitual offender in order to fund his habit. I accept there is a level of sophistication about his dishonesty offending, but I do not consider that necessarily means his methamphetamine addiction can be discounted as the reason for his lapse back into crime.

[20] Even leaving aside Mr van Boven’s early life circumstances, alcohol and drug abuse may constitute a mitigating factor if there is an established causative link

¹⁶ Carr v R, above n 10, at [64].

between the offender’s addiction and their offending. The link between drug dependence and dishonesty offending has long been recognised,¹⁷ and the Court of Appeal in Zhang v R confirmed the relevance of addiction when assessing an offender’s culpability.¹⁸

[21] In the present case, the pre-sentence report writer accepted there was a connection between Mr van Boven’s unstructured lifestyle, unemployed status, interactions with gangs, drug use and his offending. He was assessed by that time as being at moderate risk of addiction but the report writer observed this was not entirely accurate because Mr van Boven had effectively detoxed while on remand. I acknowledge, as the sentencing Judge himself observed, it is difficult to identify a clear linkage between Mr van Boven’s personal circumstances, including his drug difficulties, and his driving offending. Indeed, it is to be noted that this type of offending continued during the period when Mr van Boven is described as experiencing a relatively stable period in his life.

Decision

[22] I consider that, notwithstanding the lapse of time, there remains some nexus between Mr van Boven’s extremely difficult upbringing and his drug difficulties and most, but not all, of his offending. I consider some credit should have been extended to him when imposing sentence. Credit in the order of three months, or approximately 15 per cent, in my view would have been appropriate to reflect the linkage between this personal background, his methamphetamine habit and the dishonesty offending. Accordingly, I consider the appeal should be allowed in order to permit that adjustment to be made.

Result

[23] The appeal against sentence is allowed. The sentence of imprisonment of 18 months and 14 days in respect of the receiving charges is quashed. In its place, a sentence of 15 months and 14 days is imposed. All other sentences, including the

17. See Short v Police [2022] NZHC 2158; Annear v R [2022] NZHC 2135; Wikaira v Police [2021] NZHC 3262; and McKenzie v Police [2015] NZHC 2742.

¹⁸ Zhang v R, above n 9.

cumulative sentence of eight months’ imprisonment and the order to pay reparation, remain unaffected.

Solicitors/Counsel:

K E Bucher, Christchurch Crown Solicitor, Christchurch